SUBMISSION TO THE PORTFOLIO COMMITTEE FOR WATER AND ENVIRONMENTAL AFFAIRS.
By T.M. (Terry) Bengis
The Efficacy of Environmental Impact Assessments (EIA’s)
The idea of an Environmental Impact Assessment or EIA is a good one and the hoped for outcome is no doubt the grease for the big machine of technical expertise and knowledge that drives the process. There are however a number of practical issues that water the process down and which when analysed bring into question the process and fuel the arguments against such processes in terms of time, costs and delays which speak mainly to the Developers and create issues around those that are for and those that are against developers.
The problem arises, in my view, because the Consultants charged with the task of carrying the EIA out are paid for directly by the developers. This needs to change, there is no question in my mind that a situation exists of “he who pays the piper, calls the tune”, this was made evident during the long and difficult EIA carried out for the King Shaka Airport in Kwa Zulu Natal which was hurriedly built for reasons other than a need in terms of the requirement for that region, a new Airport for the World Cup, an over ambitious Provincial Government, with weak fundamentals papered over by un-researched statements driven by political gerrymandering rather than solid reasonable requirements. We are still today grappling with issues raised during the EIA process and put to one side in the interest of short term gain. The Airport grapples with so called single event noise and we have a modern undercover farming facility built to propagate all sorts of fresh produce for export, yet all it does is supply the local Woolworths!
The first intervention must be that all fees for EIA’s are paid into a central fund and Consultants are appointed by the relevant Department of Environmental Affairs, and are paid from that fund, the needs of the Public also must be taken care of and an additional Consultant must be appointed separate from that who will do the EIA and who will take care of the needs of the public. In my experience the public who are concerned enough to take part in the so called Public Participation Process are usually ill advised, ill informed and certainly are not prepared to put their own funds into standing up to a developer and his Environmental Consultants, thus creating a one sided result that might not, in the long term, be in the interests of the community at large. Such a fund and appointments might prove to be problematic in terms of the possibility of corruption in appointments, however if the proper protocols are in place this should prove to be far more beneficial than the current system.
Since I first participated in an EIA under the old Development Facilitation Act (DFA) I noticed that the issue of jobs is always up there as an almost sacred component of any project, in fact Adv. De Lange and I had a discussion at the White Paper hearing back in November of 2011 about this very thing, in simple terms when a developer makes a statement about direct and indirect job creation as part of the reason backing the Business Case, that developer must sign some form of acceptance that should there be a shortfall in those numbers on completion then that entity must as part of their expenses make up the numbers, this must be specific in the Record of Decision and must be part of a six monthly return supplied to the Department of Environmental Affairs and must be subject to audit from time to time.
When a Government Development requires Environmental Authorisation, the adjudicating panel must be independent and must be appointed from the panel inside the fund, it cannot be that a Government Department can adjudicate another Government Department. An EIA must always be independent and impartial, this is critical for its legitimacy.
The seed for an EIA must be a bankable business plan, again going back to the King Shaka EIA, there was no business case available for public scrutiny, the drawbacks and warnings were not heeded and now the travelling public and aviation in general have to pay for this basic mistake. The argument, in the case of a private development that it is private holds little water proven by the recent disaster of the Ballito Bay Mall, where despite there being two other major centres within one kilometre was given permission to build, two years later the company is insolvent, electricity and water bills have not been paid and the town is faced with the distinct possibility of a derelict building with all the associated problems.
This error brings me to enforcement of Environmental Laws at all three levels of Government, it cannot be stressed enough that with the obvious threat of Climate Change and its associated extreme conditions Environmental approvals must be enforced at all three levels of Government without exception and enforcement agencies must be able to enforce the law even though buildings and developments were built prior to any current or proposed law being promulgated, just because a building or any other development or installation was erected prior to current or proposed legislation does not mean that it might not comply, Situations like the current mining development at Mtunzini (Tronox) will then have to comply with current as well as new legislation, thus closing any loophole that might currently exist.
I thank you